Free Order on Motion for Leave to Proceed in forma pauperis - District Court of Delaware - Delaware

Case 1 :07-cv—00527-GIVIS Document 4 Filed 10/11/2007 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
POR THE DISTRICT OP DELAWARE
JOHNNY LOPEZ, )
Plaintiff, g
v. J Civil Action No. 07-527-GMS
TIMOTHY MARTIN, MARIA LYONS, g
and C/O MRS. MORGAN, )
I Defendants. J
ORDER
Plaintiff Johnny Lopez (“Lopez"), #459748, filed this action alleging violations of his
constitutional rights. Lopez proceeds pro se and has requested leave to proceed informa
paaperis pursuant to 28 U.S.C. § 1915. (D.I. 1.) Lopez is currently an inmate at the Delaware
Correctional Center, Smyrna, Delaware.
The Prison Litigation Reform Act ("PLRA") provides that a prisoner cannot bring a new
civil action or appeal ajudgment in a civil action informa pauperis if he or she has three or more
times in the past, while incarcerated, brought a civil action or appeal in federal court that was
dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be
granted. 28 U.S.C. § 1915(g). A case dismissed as frivolous prior to the enactment ofthe PLRA
(i.e., April 26, 1996) is counted when applying the "three strikes mle". Keener v. Pennsylvania
Bat ofProbation & Parole, 128 F.3d 143 (3d Cir. 1997). An exception is made to the "three
strikes rule", when the prisoner is in imminent danger of serious physical injury. A prisoner who
is not proceeding informa pauperis may file a new civil action or appeal even if that prisoner has
three or more dismissals described in 28 U.S.C. § 1915(g).

Case 1:07-cv—00527-G|\/IS Document 4 Filed 10/11/2007 Page 2 of 2
The court takes judicial notice that Lopez, while incarcerated, has tiled at least three civil
actions that were dismissed as frivolous, malicious or for failure to state a claim upon which
relief may be granted as follows: Lopez v. Howard, C.A. No. 06-107-GMS (D. Del. Apr. 10,
2006), ayfd Lopez v. Howard, No. 06-2361 (3d Cir. Mar. 8, 2007); Lopez v. De/aware, C.A. No.
03-936-GMS (D. Del. June 16, 2004); Lopez v. Wi//iams, C.A. No. 02-120-GMS (D. Del. Mar.
29, 2004). Accordingly, Lopez may not file another civil action informa pauperis while
incarcerated unless he was in "imminent danger of serious physical injury" at the time of the
filing of his complaint. 28 U.S.C. § l915(g), Abdu/—Akbar v. McKe/vie, 239 F.3d 307, 311 (3d
Cir. 2001). His complaint does not meet that standard.
Lopez’s motion for leave to proceed informa paaperis (D.1. 1) is DENIED. However,
Lopez is given thirty (30) days from the date ofthis order to pay the $350.00 filing fee. lf Lopez
does not pay the filing fee within that time, the complaint shall be dismissed pursuant to 28
U.S.C. § 19l5(g).
DATED: ll, 10*} 7 UNli ED STATES DISTRICT
F I L E D
001 1 1 2007
us. oisrnicr counr
oisrnicr OF DELAWARE
2

Case 1:07-cv-00527-GMS

Document 4

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Case 1:07-cv-00527-GMS

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